President Trump’s national emergency declaration in an attempt to build a border wall may be a novel use of his presidential authority, but it shouldn’t be entirely surprising.
During periods of divided government — like the one we entered when the Democrats regained control of the House after the 2018 midterms — public executives (presidents and governors) are likely to turn toward administrative actions, such as issuing executive orders and national emergency declarations, in an attempt to achieve their policy goals by circumventing the legislature.
Although research shows that presidents don’t necessarily issue more executive orders during periods of divided government, the motivations behind these administrative policy-making tools often become more political.
In order to understand what political factors impact a president’s decision to “go it alone,” we can learn a lesson from how governors make the same decision.
Because we only have one president and Congress at a time, it is difficult to separate historical trends from political ones. But, at any given time, we have 50 governors engaged in the same type of political bargaining with 50 state legislatures and the political situation in each state is often vastly different. This allows researchers to consider the impact of political dynamics that we can’t study by only looking at the national level. We can take advantage of these differences and model which factors make it more likely for presidents and governors to circumvent the legislature and make policy administratively.
Three political factors stand out as particularly important motivators for this type of presidential strategy when his party does not also control Congress. President Trump is currently in the midst of a perfect storm of all three, making his decision to declare a national emergency an entirely foreseeable outcome. I’m not saying it’s a good or strategically sound strategy, just that it was possible to see it coming.
More competitive legislative elections (i.e. fewer reliably safe seats in Congress) are associated with an increase in administrative action. Increased competition for reelection means that members have to pay more attention to the needs of their district and have less leeway to support a president’s proposal when it doesn’t directly align with the needs of their constituents. This can make it tough for a president to rally votes from members of his own party and build coalitions across the aisle. The 2018 midterms welcomed in a notably large freshman class of legislators. In fact, the 2018 House elections had the third highest rate of turnover since 1974. These new legislators have little incentive to play nice with the president and the intense reelection fight means that returning legislators who the president could previously count on may be less of a sure thing.
Extreme levels of polarization make it harder to find members of the legislature willing to cross the aisle. As the ideological divide between the parties grows, the chances of passing bipartisan legislation decrease. As a result, “going it alone” become more appealing to presidents. Our current situation is highly polarized and leaves few moderates in Congress who look across the aisle, particularly in periods of divided government.
The likelihood of administrative action increases as presidents attempt to lead more factionalized parties — in other words, when the president can’t rely on the members of his own party to support him as a unified bloc. During these situations, members of the president’s party have little incentive to stay loyal and often defect across the aisle or publicly break with the president. The news has been full of recent examples of congressional Republicans criticizing the president on the shutdown, Syria, and most recently a border wall. Criticism from within his own party can make a president seem weak, and an administrative response like an executive order or national emergency declaration can be a forceful attempt to regain status.